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On The Application Of The Doctrine Of The Most Significant Relationship In China

Posted on:2018-08-09Degree:MasterType:Thesis
Country:ChinaCandidate:X H WuFull Text:PDF
GTID:2346330515460384Subject:Science of Law
Abstract/Summary:PDF Full Text Request
The Doctrine of the Most Significant Relationship of private international law is recognized as the most prominent doctrine in the field of conflict law.The American scholar Rees written in 1971 "second conflict of laws restatement" systematically constructed the doctrine.Since then,the doctrine has swept through the legislation of international private law,which has become the common language in the field of private international law,It has even been called "the supreme,sacred and inviolable theory" by some private international law scholars.Since reform and opening up,the number of foreign cases increasing year by year in our country,the areas involved are increasingly widespread,the case more complex,it is necessary to improve and perfect our private international law also.In the spirit of "Copinism",the legislature of our country boldly introduced the " the doctrine of the most significant relationship",thus subverting the more traditional legal choice of private international law,giving the judges of the case an unprecedented discretion to judge In front of the conflict,it is possible to make a more reasonable legal choice in combination with the specific case and seek truth from facts,protect the legitimate rights and interests of the parties and realize the value of the law.For decades "the doctrine of the most significant relationship" has undergone tremendous changes in China's legislative status.From 1985 in the legislation of "connecting factor" to 2010 in the legislation of "compleent principle",meaning in China on the principle of acceptance and the importance of improving,but also demonstrates the legislation technology continuously mature,in line with the development of private international law in pursuit of the convergence.However,in the course of the application of the principle in China,it also highlights a number of problems,the urgent need for theoretical researchers and legal practitioners to deal with and solve.The first part of this article from the source of the doctrine of the most significant relationship of the economic base,several aspects of the origin of thought and legal system of the analysis of the necessity and importance of the principle.And combining with the legislative practice in our country,pointed out the advantages and disadvantages of the current application of our principles,through this statement,there can be a basic understanding and overall grasp of the principle of the most closely linked.The second part,introduce the current situation of application of the doctrine in China and problems.First of all,from the legislative orientation,four aspects of the scope of facts are discussed the principle of the China applicable real situation;secondly,from the perspective of China's judicial practice,pointed out a series of practical problems the application of the principle in our country.In this part,the most prominent feature is closely linked to China situation.The third part analyzes the principle of the closest connection problems,in Chinese from the economy,the quality of personnel and several other aspects of the legal system,find out problems generated by these causes,and to put forward solutions to an antidote against the disease.The fourth part,after finding the most closely linked to the principle of the existence of the problem,combined with China's actual situation,propose solutions to address the problem.I hope these suggestions for China's private international law perfect and mature.
Keywords/Search Tags:The Private International Law, The Doctrine of the Most Significant Relationship, Apply, Solution way
PDF Full Text Request
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